[Congressional Record Volume 171, Number 130 (Tuesday, July 29, 2025)]
[Senate]
[Pages S4805-S4807]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Emil J. Bove III
Mr. WHITEHOUSE. Mr. President, it is probably too late to do anything
about the upcoming vote. I know a little bit about how this place
works, and at this point, the proverbial die is likely cast.
But what we are about to do is so wrong, so unusual, that even if
these remarks will have no effect whatsoever, I feel obliged to come to
the floor.
We are about to vote into high judicial office an individual who
managed to engage in three separate significant episodes of
prosecutorial misconduct in 6 months. That is undoubtedly a Department
of Justice world record.
These were not minor episodes of prosecutorial misconduct. These were
not a file missing from a Brady disclosure. These were not an
inopportune word dropped in an oral argument. This was planned,
deliberate, serious prosecutorial misconduct.
I will briefly describe the three episodes. The first had to do with
the political desire to freeze funds that Congress had already
appropriated and obligated and that even had been disbursed out to a
bank as the fiscal agent for the appropriated program. But because it
involved clean energy, the Trump administration wanted to claw that
money back.
The time for Presidential veto had long, long, long gone. There was
no Federal hold on the money. It was in a private bank. So, really,
that cow had left the barn. But they were so insistent because they
hate clean energy so much, they had to get this money back. The White
House was demanding it, presumably.
So here is the plan that they cooked up. Emil Bove and the acting
U.S. attorney for the District of Columbia, they would create a fake
criminal investigation. And on the basis of that fake criminal
investigation, they would go to a judge and try to get an order to
freeze the funds that they were so irritated about. Remember what I
just said: a fake criminal investigation. It is kind of prosecutor 101
that you don't pursue fake criminal investigations. There is prosecutor
language for how you go about starting a criminal investigation. You
have to have something called predication, some reason to believe that
there is a crime.
But they needed a criminal investigation in order to find a way to
seize the money, so they started a fake one--or at least they tried to.
How did that work out? Not that well, actually, because the Chief of
the Criminal Division, a career, experienced attorney said: Boss, there
is no crime here. We can't do a criminal investigation if there is no
evidence whatsoever of any crime.
For her pains, she was driven out of the office, forced to resign. So
then they shopped it around the office: Is there anybody else willing
to sign this plead in; any career attorney in the very big U.S.
Attorney's Office for the District of Columbia? None. No one would sign
it because it was a fake criminal investigation.
So the U.S. attorney went in on his own--that almost never happens--
to try to get the order from the fake criminal investigation. And the
magistrate shot him down, said: No, no chance. And that almost never
happens, because U.S. attorneys don't go into court unprepared and they
want to enjoy the credibility of the local bench.
So they go through all sorts of hoops, every conceivable effort to
make sure that a request for a judicial order or warrant is well-
supported. Not this time. It was too important. The fake criminal
investigation is completely outside of what is appropriate for a
prosecutor's responsibilities.
It gets--actually, if you can believe it--worse because they had a
client in this, the rather corrupt individual who now runs the
Environmental Protection Agency. And they let their client run all
around in the media, on the news, publicly disparaging the recipients
of those funds, which included groups as ominous and dangerous as
Habitat for Humanity. But to whip up an atmosphere of criminality,
accusations were made about crimes--false accusations were made about
crimes.
Well, it is also prosecutor 101 that you don't disparage the subject
of your investigation or the subject of your prosecution. Prosecutors
have all the tools in the world to make cases, to take away people's
property, to take away people's liberty. Where there is a death
penalty, you can take away people's lives. You play within bounds. You
let your pleadings do the talking. You don't go out on talk shows and
talk about the supposed subjects of a criminal investigation--even a
real one--in disparaging terms. You just don't do it. It is beneath
most prosecutors. Not these characters.
That was episode 1.
Episode 2 was to stop an ongoing criminal case involving an elected
official so that they could dangle that case over the head of the
elected official as part of a deal to get that elected official to
follow administration policy on immigration enforcement. You don't do
that. Again, if you are not a prosecutor, it might not seem like this
is
[[Page S4806]]
obvious, but it is obvious. It is prosecutor 101. If you have the case,
you make it. If you don't, you don't. A criminal case against an
elected official is not an opportunity for ``let's make a deal.'' That
is way out of bounds, but that is what they did.
A judge ended up shooting it down and saying: Look, if you are going
to dismiss this thing temporarily so you can hang this thing over this
guy's head, no. You have to dismiss it with prejudice--done, over,
finished.
But it took a judge to step in to break that scheme of prosecutorial
misconduct.
Episode 3, Trump is trying to illegally deport lots of people. He is
trying to do it in the dead of night. He is trying to do it around
American constitutional due process, and somebody has gone to a judge
to say: Whoa. This isn't right.
So lawyers have gotten involved, and now lawyers are in court, where
you are supposed to tell the truth. The lawyers for the Department of
Justice--in court, supposed to tell the truth--were being lied to by
Trump administration officials, denied information they needed for
court by Trump administration officials.
The crowning--the crowning--blow being told by this Trump
administration official--the one whom we are about to put on the
bench--is that they should be ready to tell courts ``f you'' if they
try to interfere with illegal deportations--and it wasn't just an ``f''
in the transcript.
These are three separate, significant episodes of prosecutorial
misconduct in just 6 months. Nothing like this has ever been seen at
the Department of Justice. And it is so well corroborated, it is so
well documented, there is no denying it. There is no question of, is
this real or not?
In the first case, that criminal chief who got run out wrote it down.
She sent a letter laying out everything that had happened. She was a
live witness to that episode whom the Judiciary Committee could have
called to hear from to help get to the bottom of this.
If there was any doubt on the question of the false allegations of
fraud and crime, the Department of Justice's own lawyers, in a later
civil proceeding, conceded to the court: Yep, we are not alleging fraud
here. There is nothing we are saying here about any actual fraud. Never
mind all those allegations of criminality that have been made on behalf
of the government by the client in this case.
So that episode was very, very well corroborated.
In the next episode, the one involving the elected mayor, you had a
similar letter from the acting U.S. attorney, who resigned rather than
go along with this corrupt bargain; you had Trump's own border czar,
who went on television to confirm that this was, in fact, an agreement,
that they had, in fact, done ``let's make a deal'' with an elected
official over a pending criminal case. Your own client at that point is
confirming it on live TV. A whistleblower came forward, so you had a
whistleblower as well. You had triple-decker confirmation of that
second episode of prosecutorial misconduct.
As to the deportations and telling prosecutors to get ready to tell
courts ``f you,'' there were multiple whistleblowers and lots of
corroboration from actual emails and texts at the time. You had
prosecutors texting each other about that ``f you'' comment. If it had
not occurred, those text exchanges would have made no sense. The first
response would have been: What are you talking about? But, instead,
everybody knew what was being said in the text chain because they had
been in the room, they had heard him say it, and now two whistleblowers
have come forward on that.
So you have multiple whistleblowers, lots of written evidence from
career prosecutors, and statements by Trump officials corroborating
these schemes. And what have we got? Monkey see no evil. Monkey hear no
evil. Shove this guy onto the court because Trump wants it. Oh, did I
mention he was Trump's criminal lawyer in the cases in which Trump was
convicted of crimes?
The hearing was a shocking disgrace. I guess it turns out that
nowadays, in order to get through a judicial confirmation hearing in
the Senate Judiciary Committee, all you need to do is to remember to
say ``I don't recall,'' ``That would not be appropriate for me to
answer,'' or ``That information isn't public.'' You learn three
answers, and you get through the hearing because the majority will
never force the witness to answer an actual question.
It actually gets a little bit worse with respect to the deportation
matter because there was another line of corroboration that could have
been developed to prove this character's involvement in this scheme to
fool the judge and ultimately to simply refuse to obey a court order.
That was that, after all this nonsense went down in front of the
judge--judges aren't stupid; he knew he was being had--he found
probable cause of contempt of court, opening the prospect of a hearing,
with evidence, into contempt of court, where witnesses would have
testified, where the full email and text chains would have come into
the record, where there would have been an indisputable judicial record
of what took place.
Well, what became of that? It got stopped by two Trump appointees who
stopped the contempt proceedings through a device called an
administrative stay over the dissent and objection of the third judge,
the one who was not a Trump appointee. So two Trump appointees stop a
hearing into contempt of court by the Trump DOJ.
An administrative stay is supposed to last hours or days. Not too
long ago, Justice Barrett chided the circuit court of appeals for an
administrative stay that had lasted 2 weeks. This administrative stay
that stopped the development of the evidence of this individual's
misconduct has been in place for 3 months without explanation, but it
was just enough time for the Trump operatives in the DOJ to shove this
individual through the confirmation process, where real questions and
real answers never appeared, while the place that would have gotten
this with cross-examination, under oath, with consequences of perjury,
was stalled by two other Trump judges. This smells like a play, like a
maneuver, and we are going to continue to look into it.
I will say to my colleagues: This is not going to go away. It took me
6 years to ultimately prove that the FBI had been instructed in the
Kavanaugh supplemental background investigation to do only what the
White House told them, no more; that they had no rules, no practical
guidelines--only what the White House Counsel told them. And what the
White House Counsel told them is, you may not seek or find
corroborating evidence.
Then, of course, all of our colleagues on the Republican side stood
up and said: Oh, look, there is no corroborating evidence.
They didn't bother to share that it had been the White House's
instruction to the FBI to avoid any corroborating evidence.
It took us 6 years to dig that out. So I can be persistent, and I
will tell you, this is an episode that requires persistence.
First of all, there is a bar complaint against this guy for his
misconduct that the New York bar referred to the Office of Professional
Responsibility at the Department of Justice. Well, as soon as we
confirm him, he is out of the Department of Justice, and the OPR has no
jurisdiction any longer. So I see no reason not to go back to that bar
complaint and get somebody to take a look into this since a MAGA OPR is
not about to look into a MAGA Department of Justice employee.
Second, there is contempt here. At some point, that administrative
stay is going to be lifted, and then there will be testimony. Then
there will be evidence. Then people will be subjected to cross-
examination. Then the truth will come out, and I strongly suspect it is
going to be highly, highly embarrassing.
Perhaps to prevent that, the Department of Justice just filed a new
complaint against the judge who will hold that contempt hearing.
Presumably, their argument is going to be, ah, we have now filed a
complaint against that judge; therefore, he is conflicted out, and that
hearing can't go forward.
This is the Department of Justice--the MAGA Department of Justice
filing a complaint, perhaps even in bad faith, against a U.S. district
judge to try to conflict him out from a hearing that would show
contempt of court by that very Department of Justice. What a tangled
web we weave.
[[Page S4807]]
Last, there are going to be questions asked about those two Trump
judges and why the administrative stay and why for 3 months and why the
amazing coincidence that those 3 months of administrative stay was the
period that it took to pick up this character, shove him through the
nominations process, shove him through the Republican-controlled
Judiciary Committee, and stuff him onto the bench without that hearing
taking place. That is too much coincidence for this lawyer.
So this is not over. I strongly suspect that my colleagues will come
to regret and lament their vote for this character. Bad nature is hard
to make disappear.
I will end where I began the first time I came to the floor to
discuss the nomination of Emil Bove to the Third Circuit, and that is
the story about the snake by the side of a path, injured and broken,
who was picked up by the lady who was walking along and taken to her
home, where the snake was fed and cared for until he healed. Then she
took him back to where she had found him, back to his home. She set him
down beside the path, and he bit her.
As she was dying from the snake's venom, she said to the snake: Why
did you bite me--the one who picked you up, the one who cared for you,
the one who fed you, the one who brought you back here to your home
area?
The snake said: You knew when you picked me up that I was a snake.
This is my nature.
This man's nature will out.
I yield the floor.
The PRESIDING OFFICER (Ms. Lummis). The Senator from Utah.